STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7232

)

F & A TRUCKING, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on February 5, 1992, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

Assistant General Counsel

Florida Department of Transportation

M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Maria Anderson

F & A Trucking, Inc.

201 Benoist Farms Road

West Palm Beach, Florida 33411 STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent operated a commercial vehicle on a highway in the State of Florida in excess of its legal axle weight and, if so, whether the penalty of $230.00 assessed by the petitioner is proper.

PRELIMINARY STATEMENT

On March 26, 1991, petitioner issued a Load Report and Field Receipt finding that respondent had operated a commercial vehicle on a highway of the State of Florida in violation of its legal axle weight, and assessed a penalty in the sum of $230.00. Respondent, pursuant to Section 316.545(7), Florida Statutes, sought review of such penalty before the Commercial Motor Vehicle Review Board. The board sustained the penalty, and respondent requested a formal hearing. By letter of November 7, 1991, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner presented the testimony of David Pearce, a Safety Officer of the Department of Transportation, and its exhibit 1 was received into evidence. Respondent called Karl Moody as a witness, and offered its exhibit 1. Petitioner objected to respondent's exhibit 1 and ruling of its admissibility was deferred to the rendition of this recommended order. Upon consideration, petitioner's objection is sustained.

The parties declined the opportunity to file a transcript of the hearing, and were granted leave until February 18, 1992, to file proposed findings of fact. Petitioner elected to file such proposals, and they have been adopted in substance in this recommended order.

FINDINGS OF FACT

1. On March 26, 1991, petitioner's safety officer, David Pearce, stopped a commercial vehicle operated by respondent on State Road 7 in Palm Beach County, Florida, for inspection. Such stop was predicated upon the officer's well- founded belief that the weight of the vehicle exceeded legal limits.

   
   

2. The subject vehicle had four axles, with the rear axles in tandem. The officer weighed the vehicle by axle, and the rear tandem axles weighed 49,400 pounds. The legal weight for the tandem axles was 44,000 pounds, as provided by Sections 316.535 and 316.545, Florida Statutes. 1/ Accordingly, the axle weight of the subject vehicle was 5,400 pounds over the legal limit.

   
   

3. A penalty in the amount of $10.00 for the first 1,000 pounds and 5 cents per pound for each additional pound overweight was assessed against respondent. The total assessed penalty was $230.00.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

   
   

5. Pertinent to this case, Section 316.535, Florida Statutes, provides:

   
   

   1. The gross weight imposed on the highway by the wheels of any one axle of a vehicle shall not exceed 20,000 pounds.

      
      

6. Upon the foregoing provision, the maximum gross axle weight of respondent's vehicle was established at 40,000 pounds. When the 10 percent tolerance provided for in Section 316.545(2)(a), Florida Statutes, is applied to such factor, a maximum legal axle weight for the subject vehicle of 44,000 pounds is derived. Accordingly, based on the facts of this case, respondent's vehicle was 5,400 pounds overweight.

   
   

7. Also pertinent to this case, Section 316.545, Florida Statutes, provides:

   
   

   (3) Any person who violates the overloading provisions of this chapter shall be conclusively presumed to have damaged the highways of this state by reason of such

   overloading, which damage is hereby fixed as follows:

   * * *

   (b) Five cents per pound for each pound of weight in excess of the maximum herein provided when the excess weight exceeds 200 pounds. However, whenever the gross weight of the vehicle or combination of vehicles does not exceed the maximum allowable gross weight, the maximum fine for the first 1,000 pounds of unlawful axle weight shall be $10.

   
   

8. Applying the foregoing provision to the facts of this case derives a penalty of $230.00, derived as follows: $10.00 for the first 1,000 pounds of unlawful axle weight and 5 cents a pound for each additional pound.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered sustaining the penalty of $230.00

assessed against respondent.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of February 1992.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of February 1992.

ENDNOTES

1/ At hearing, respondent sought to question the validity of the weights found by the petitioner's safety officer. The proof was, however, persuasive that the weights derived by the safety officer were accurate.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Assistant General Counsel

Florida Department of Transportation

M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Maria Anderson

F & A Trucking, Inc.

201 Benoist Farms Road

West Palm Beach, Florida 33411

Ben G. Watts Secretary

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner

Thornton J. Williams General Counsel

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-007232

Orders for Case No: 91-007232